The Yukon government is in the process of a much-needed revamp of the Residential Landlord and Tenant Act and has requested comments from the public. I’ve taken a look at the legislation and have one major issue with the construction, an issue which stems from my biggest pet peeve: when we, as a territory of 30,000, create two public bodies tasked with doing the exact same thing.
We seem to do it all the time, and it drives me a bit crazy.
In this case, the new act creates the position of director of residential tenancies, an individual who will oversee and resolve disputes between tenants and landlords. It turns out we already have a very effective dispute resolution system in place in the territory overseen by professional triers of evidence.
It is called the territorial court. We have been using it for the past 100 years, and it seems to have worked out just fine so far.
The current system for landlord-tenant dispute resolution works efficiently. The judges of the territorial court are granted the authority to determine whether evictions are lawful and what should be done with security deposits.
The aggrieved party, landlord or tenant, fills out a form at court services and delivers notice to the other party. The matter is given a court date very quickly, usually within a week, and the parties show before a judge who hears the evidence and makes a determination.
It is not a byzantine system; it is very straightforward and very accessible. Lawyers refer to it as Landlord-Tenant Court.
The strength of our current system lies in the individuals overseeing the process. Judges are uniquely equipped to deal with contractual disputes and the interpretation of legislation.
By downloading the dispute resolution process to a director, we create a shadow system of justice overseen by individuals who are not possessed of the same expert oversight as judges. Why have a class of people uniquely equipped to handle disputes and then not use them when disputes arise? Why create a separate system of dispute resolution where the current system works just fine?
The only change to the current system that needs to be undertaken is granting judges the ability to award damages in relation to property destruction and unpaid rent. Currently an individual has to go through the small claims process for those two items, and it would be more efficient to deal with those issue in Landlord-Tenant Court.
Further, the new act grants the director the power to ensure that rental units are maintained to a certain level. Again, we already have an entire building safety branch within Yukon’s Department of Community Services, and bylaw at the City of Whitehorse, dedicated to ensuring buildings and property are safe and up to code.
A builder does not apply to the director of residential tenancies for an occupancy permit, so why would an owner be subject to the review of the director of residential tenancies when it comes to continued safety of the building?
Would we not want the professionals involved with building safety within the Yukon and municipal governments to be tasked with ensuring buildings are safe and up to a certain standard? Again, we are perhaps downloading review powers to an individual who is not as uniquely capable of making determinations as those individuals already inhabiting other government departments.
In short, the government already has all the enforcement tools in place to deal with residential tenancies, so why create an entirely new department to deal with what is essentially just a contract between two people?
With all that being said, and in an effort not to be seen as completely negative all of the time, I will give the government credit for deciding to forego the inclusion of any “security of tenure” provisions in the act. It’s a concept by which the landlord is restricted from evicting a tenant unless the tenant has breached the terms of the rental contract or the landlord evicts pursuant to an exemption. Examples of such exemptions are the renovation of the property or if the landlord has a family member moving in.
The problem lies in enforcing against a landlord - who checks in to make sure the landlord is actually renovating, or that the person moving in is actually related? Such enforcement is costly, as it requires the creation of a shadow rental police department to check in on landlords to ensure compliance, which is a time-consuming and intrusive form of investigation. And the gains are minimal, as the renter is almost always already moved out by the time enforcement discovers the landlord has not renovated.
It is much easier, and more efficient, to simply expect the landlord to live up to the terms of the original rental agreement and have legislation provide an appropriate notice of termination of month-to-month tenancies. The new act calls for the landlord to give 60 days notice prior to termination, a time frame which should be adequate for a renter to find alternative accommodations.
The debate surrounding “security of tenure” is better centered on the statutory time frame required for termination of the tenancy, so as to ensure renters have adequate time to find a new place to live, as the reality is that a rental, almost by definition, can never be forever.
Graham Lang is a Whitehorse lawyer practising real estate and commercial law.